Is it Illegal to Smack your Child?

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Crying baby

Supernanny Jo Frost may condemn it, but according to one survey done last year, 69% of Australian parents smack their children.

Regardless of ‘best parenting’ techniques which may advocate against smacking, is it actually illegal to smack your child in Australia?

According to legislation, smacking is perfectly legal, although it is against the law in over thirty countries, including New Zealand.

But smacking must be done only using reasonable force.

But where is the line drawn on reasonable?

NSW is the only state to go into more detail about what this means.

Under section 61AA of the NSW Crimes Act 1900, “lawful correction” is a valid defence for the application of physical force to a child.

The criteria for a reasonable smack is:

  • It must be by a parent or a person acting in place of a parent;
  • It must be for the purpose of discipline; and
  • The application of physical force must be reasonable in all of the circumstances.

However, if the force was applied to the head or neck of the child, or any other part of the body likely to cause harm to the child for more than a short period, it will not be reasonable, unless it is considered trivial or negligible.

Tony Abbott does not believe gentle smacking is a concern, and sees attempts to ban it as political correctness gone too far.

And Queensland’s Premier Campbell Newman stated late last year that focusing on such a trivial issue as smacking doesn’t make sense, considering more pressing concerns where people are exploited.

But not all see the punishment as benign and while it may still be legal, there are many pushing to make it against the law.

The Royal Australasian College of Physicians (RACP) believes that smacking is a violation of the child’s human rights and even the UN has recommended all forms of corporal punishment should be banned in Australia.

But physical punishment gone wrong can be child abuse, and in extreme cases, can even lead to death.

Some groups advocate the banning of smacking altogether to eliminate any grey lines.

On the other hand, parents charged with assaulting their children say they were merely trying to legitimately discipline their badly behaving kids after other avenues had been exhausted, and that this should not constitute a crime.

According to RACP, smacking is not effective in the long-run and merely teaches children to use physical force.

The organisation argues that children who receive corporal punishment are more likely to develop aggression and mental health problems.

They say it is counter-intuitive and inconsistent that smacking children – a vulnerable group within society – is the only time when it is legal to hit another person.

In countries where smacking has been banned, levels of child abuse have also been found to drop.

RACP have also linked physical punishment to antisocial behaviour, substance abuse and future abuse of their own children or spouse.

However, to most of us who grew up receiving the occasional smack, these claims may seem outlandish, perhaps even offensive – ‘we turned out okay, didn’t we’?

Dr Gervase Chaney, the head of the RACP Pediatric & Child Health Division said in 2012 that there is no delineation about what is a smack and what is child abuse.

But surely this is going too far – a gentle smack is distinguishable from harmful and abusive behaviour to reasonable people.

Is this just another extension of the nanny state, intervening in the personal decisions of parents in bringing up their children or should smacking have no place in modern Australian society?

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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